Walker v. Gilman , 25 Wash. 2d 557 ( 1946 )

My dissent is based upon three grounds:

(1) The statute bringing into being the bureau known as the office of price administration, is unconstitutional; (2) the courts of this state do not have jurisdiction to consider questions such as presented in this case; and (3) appellant is entitled to prevail upon the merits as is disclosed by the evidence.

In support of the first ground I cite the decision of the superior court of Yakima county in the case of Kenyon v. Blackburn, written by Honorable N.K. Buck, judge of the superior court of Yakima county. In that case an action was instituted to secure the possession of an apartment in the city of Yakima. One of the issues raised was whether Congress had the authority to regulate rents and rental contracts between private citizens. In passing upon that issue the court stated:

"This court is mindful of the rightful place held by precedents and decisions of other courts, but such authority is, after all, limited and must give way to the fundamental law of the land. We have taken an oath of office to uphold the Constitution and the laws made in pursuance thereto. We remember that ``the judges in every state shall be bound thereby.' No one takes an oath of office to uphold the decisions of the courts, and to do so would be to exalt the lesser above the greater. From time to time cases arise in which the court must, if he keeps faith with his oath of office, disregard all judicial pronouncements and base his decision solely upon the American Constitution.

"This is such a case. The Constitution, when considered without regard to complex arguments as to construction, interpretation, implied powers and emergent necessity, is not difficult to understand. It should be read with this question in mind: Is the authority now under consideration granted to Congress anywhere in this instrument? If any such authority is found, the question is answered affirmatively. If it is not, then there is no such authority. Where language is plain, there is no room for judicial interpretation. The words speak for themselves. In the light of such truism, let us examine that fundamental law with reference to the present case.

"Article II, Section 2: ``The President shall be Commander in Chief of the Army and Navy of the United States * * *.'

"Article VI: ``This Constitution and the Laws of the United States which shall be made in pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby * * *.'

"Article X of the Amendments: ``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

"Where in the enumerated powers given to Congress can there be found authority to regulate the terms and conditions under which a citizen may lease or cancel the lease of property? The answer must be that there is no such authority. There has, to be sure, arisen a myth as to the so-called emergency or war powers, but such conception is only a myth to any individual who frees his mind of cobwebs of labored and sophisticated dissertations on the synthetic intricacies of constitutional law. Our Constitution is in full force and effect during a war as it is in time of peace.

"Constitutional law is just like any other law, and to apply it, one must read the content, giving to each word its usual and accepted meaning and applying such language to the case at hand. Circumlocution and involved reasoning have no place in the application of the plain mandates of our fundamental law.

"If one be tempted into the realm of so-called constitutional construction, a few remarks are appropriate. It should be kept in mind that the first thing that the people did after adopting their fundamental law was to insist upon making certain restrictions upon the power of Congress so clear that no man could misunderstand. They intended that all general power should remain with the people, and to that end adopted Articles IX and X of the Amendments.

"Article X has been quoted above. That language is so clear that no layman can misunderstand it; but sometimes, by judicial interpretation, the inclusion of certain powers or duties is construed to exclude all others. In order to avoid any such possible curtailment of the rights of the people, the framers and adopters of the amendments provided further in Article IX of those amendments: ``The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.'

"But nowhere can there be found similar language pertaining to the rights and powers of Congress. Its authority is specifically delegated and specifically limited. Nowhere does the Constitution say that the enumeration of certain rights and authority given to Congress shall not be construed to deny or disparage others of a general nature which Congress might think it inherently possessed.

"Thus it is evident that by clear and precise language the Constitution withholds from Congress all authority over that wide field of human activities not specifically mentioned in that instrument; and, of course, included in that field are regulations as to rental of real estate or other property.

"One more word might be appropriate relative to the power of the government to carry on war. In order to effectively perform that duty, Congress, or the President as the Commander in Chief, can rightfully commandeer every building in the country; but that right does not give rise to authority to regulate the use of any property remaining in private hands, nor to limit the compensation which may be received by any citizen for his property.

"If emergency powers such as the one now under consideration are necessary, the remedy is by constitutional amendment. Until that is brought about, the courts can not do otherwise than to abide by the supreme law of the land as it stands."

The act under consideration is unconstitutional for another reason, and that is that the regulation which it undertakes exceeds the police power of the state and Federal government. It must be borne in mind that the act in question attempts to regulate the amount one can charge for the use of real property. In the following cases, this court has had occasion to examine the limitations imposed upon the legislative regulation supported by the police power of the state. These rules laid down by this court, to my mind, apply to the acts of Congress:

"The power of the legislature to make all needful rules and regulations for the health, comfort, and well-being of society cannot be questioned, but there are certain limits beyond which the legislature cannot go, without trenching upon liberty and property rights which are safeguarded by the state and Federal constitutions. As said by the court in In re Jacobs, 98 N.Y. 98, 50 Am. Rep. 636,

"``The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the Constitution. . . . Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded.'" State ex rel. Richeyv. Smith, 42 Wn. 237, 84 P. 851.

"The courts will go far in sustaining the exercise of the police power for the preservation of the public health and safety, and in so doing private rights in conflict therewith are overridden; but on the other hand, the courts are equally concerned to see that, under the guise of protecting the public, private business — especially that carried on upon private property — is not arbitrarily restricted or interfered with.. . .

"True we have said, in effect, that if a state of facts can be assumed which will justify the legislation, the court must assume that such a state of facts exists; but we have never said that, in a case involving the carrying on of a business, not harmful in itself, upon private property; and that should not be the rule in such a case. Where such private rights exist, the court should review the legislative action and determine whether the legislative body has imposed unnecessary restrictions upon a lawful occupation or a lawful right. McQuillin on Municipal Corporations, vol. III, § 893; In re Jacobs, 98 N.Y. 98, 50 Am.Rep. 636; Ex parte Hayden, 147 Cal. 649, 82 P. 315, 109 Am. St. 183, 1 L.R.A. (N.S.) 184; State v. Wiggam, 187 Ind. 159,118 N.E. 684; In re Steube, 91 Ohio St. 135, 110 N.E. 250;City of Zion v. Behrens, 262 Ill. 510, 104 N.E. 836, Ann. Cas. 1915A, 1057, 51 L.R.A. (N.S.) 562.

"And so, coming to the provisions of the ordinance in question, we find that it forbids hawking, not only in the streets, alleys and public places, but on all private property as well. Unquestionably the ordinance is good as to the streets and public places, as we will assume that conditions justify the action of the legislative body in that respect. It might be that if hawking on private property closely adjacent to the public streets was forbidden, we might see in such a provision a reasonable exercise of the police power as tending to prevent the collection of crowds upon the streets and sidewalks about the open door of the place where the hawking was going on, or some similar obstruction to traffic or interference with the public safety. But that is not the question now before us. Every one has a natural right tosell his own merchandise on his own private property, in his ownway, to all who come there to buy; and if his manner of sellingoffends, those so offended may stay away. Self-interest wouldseem to be the only regulation needed in such cases." (Italics mine.) Seattle v. Ford, 144 Wn. 107, 257 P. 243.

"The same court in the case of City of Aurora v. Burns,319 Ill. 84, 149 N.E. 784, uses this language:

"``The police power, however, has constitutional limits, and any measure enacted or adopted in its exercise, to be sustained, must bear some reasonable relation to the purposes for which the power may be exercised. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private rights. The legislative determination as to what is a proper exercise of the police power is not conclusive, but is subject to review by the courts. [Authorities.] If the means employed have no real, substantial relation to public objects within the state's power, or if those means are arbitrary and unreasonable, the judiciary will disregard mere forms and interfere for the protection of rights injuriously affected by such illegal action. [Authorities.]'" Brown v. Seattle,150 Wn. 203, 272 P. 517.

If constitutional, legislation such as now before us presages extension of the police power which bids fair to take from our citizens all of the personal liberties and rights of private property hitherto considered to be guaranteed by our state and Federal constitutions.

"Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." In the Matter of Application ofPeter Jacobs, 98 N.Y. 98, 50 Am. Rep. 636.

1 Blackstone, Commentaries, 138, says that property "consists in the free use, enjoyment, and disposal of all his acquisitions."

In the following cases, it is held that the right to use and possess is property: Missouri Pac. R. Co. v. Nebraska, 164 U.S. 403, 41 L.Ed. 489, 17 S.Ct. 130; Dobbins v. Los Angeles,195 U.S. 223, 49 L.Ed. 169, 25 S.Ct. 18; Pennsylvania Coal Co.v. Mahon, 260 U.S. 393, 67 L.Ed. 322, 43 S.Ct. 158, 28 A.L.R. 1321; Washington ex rel. Seattle Title Trust Co. v. Roberge,278 U.S. 116, 73 L.Ed. 210, 49 S.Ct. 50, 86 A.L.R. 654;Commonwealth v. Clearview Coal Co., 256 Pa. 328, 100 A. 820, L.R.A. 1917E, 672.

The right to sell and dispose of property is a property right.Buchanan v. Warley, 245 U.S. 60, 62 L.Ed. 149, 38 S.Ct. 16;Duplex Printing Press Co. v. Deering, 254 U.S. 443,65 L.Ed. 349, 41 S.Ct. 172, 16 A.L.R. 196; Frost v. CorporationCommission, 278 U.S. 515, 73 L.Ed. 483, 49 S.Ct. 235.

"The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself." Tyson Bros. v. Banton, 273 U.S. 418, 71 L.Ed. 718,47 S.Ct. 426, 58 A.L.R. 1236.

On the second question, I cite as authority the decision of Honorable Roger J. Meakim, of the superior court of King county, announced in the case of Earle v. Bisazza. In that case, it appears that plaintiff Earle brought an action to recover for rent collected in excess of the amount in a ukase of the OPA. In passing upon the questions presented, Judge Meakim said:

"The Emergency Price Control Act of 1942, Title 50 U.S.C.A. App. Sec. 925 (e) recites:

"``If any person * * * violates a * * * price schedule prescribing a maximum price * * *, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price whichever is greater, plus reasonable attorney's fees and costs as determined by the court. For the purposes of this section, the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity * * *.'

"``Any suit or action under this subsection may be brought in any court of competent jurisdiction * * *.'

"The United States Price Administrator adopted a general rent regulation for housing applicable to all housing accommodations within defense areas, effective June 1, 1942. (7 Fed. Reg.) The Puget Sound area, including the City of Seattle, was designated as a defense rental area by the price administrator on March 2, 1942, (7 Fed. Reg. 1694) and regulation 20, applicable to rents in Seattle, effective June 1, 1942, was adopted on May 27, 1942. (7 Fed. Reg. 4104).

"The Emergency Price Control Act of January 30, 1942, as amended by the Inflation Control Act of October 2, 1942, 50 U.S.C.A. App. Sec. 924(c) creates an Emergency Court of Appeals and (d) provides:

"``The Emergency Court of Appeals and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under Section 2 (prices, rents and market and renting practices) * * * and of any provision of any such regulation, order or price schedule. * * * No court, Federal, state or territorial, shall have jurisdiction or power to consider the validity of any such regulation, order or price schedule * * *.'

"It is apparent from the above that in this case, if it is heard in the state court, under the terms of the Federal statute the court will be without ``jurisdiction or power to consider the validity of any such regulation, order or price schedule.'

"JURISDICTION OF THE STATE COURT

"The superior court of Washington is established by Article 4 of our state constitution, and the power and jurisdiction of the superior court are based on Article 4, Sec. 6, and our supreme court has said in the Cloherty case, 2 Wn. 137, 27 P. 1064:

"``The State of Washington is a sovereign whose written constitution is her visible charter. By the constitution all the judicial power (which is a distinct branch of the sovereignty) is vested in the courts therein created, independently of all legislation. The jurisdiction of these courts is universal, covering the whole domain of judicial power, even to that growing out of the supposed existence of municipal ordinances.'

"This language was approved in Blanchard v. Golden Age BrewingCo., 188 Wn. 396, at 414, 63 P.2d 397, where it is said:

"``Nor is it any answer to a condemnation of the statute to say that the act, in part, merely prescribes a procedure to be followed by the courts in such matters. Undoubtedly, the legislature may prescribe reasonable regulations governing court procedure. Record Pub. Co. v. Monson, 123 Wn. 569,213 P. 13. As a matter of comity between the separate departments of government, the courts will always recognize reasonable regulations prescribed by the legislature, even though they may seemingly have the appearance of being restrictions. But the courts are not required to recognize a legislative restriction which has the effect of depriving them of a constitutional grant or of one of their inherent powers. What the legislature has not given, it cannot take away. The legislature cannot indirectly control the action of the court by directing what steps must be taken in the progress of a judicial inquiry, for that is a judicial function. Stephens v. Cherokee Nation, 174 U.S. 445,478, 19 S.Ct. 722, 43 L.Ed. 1041; In re Hagan, 295 Mo. 435,245 S.W. 336.'

"See also Daniel v. Daniel, 116 Wn. 82.

"Again, and as late as December 10, 1943, our court in St.Paul, etc. v. Department of Labor and Industries, 119 Wn. Dec. 682 [19 Wn.2d 639], in deciding that in the absence of statute a supersedeas could be granted pending appeal said:

"``* * * we have, under Sec. 4 of Art. IV of the state constitution, * * * authority to grant a supersedeas * * * and that we may do although the appellant is not, as a matter of right, entitled to a supersedeas under any existing statute. This constitutional power cannot be wholly taken away by statute.'

"That the State of Washington is not alone in adhering to this theory is shown by:

"Wolton v. Pryor, 276 Ill. 563, 115 N.E. 2, L.R.A. 1918E 914, Certiorari denied, 60 L.Ed. 961.

"In this case damages were sought in Illinois for the negligent death in Missouri of an employee of a common carrier under thethe terms of the Federal Employers Liability Act, which provides that:

"``The jurisdiction of the courts of the United States under this act shall be concurrent with the courts of the several states.'

"The action was brought in the face of an Illinois statute providing:

"``That no action shall be brought or prosecuted in this state to recover damages for death occurring outside of this state.'

"Sustaining the defendant's demurrer, the court said:

"``The courts of this state derive their jurisdiction from the constitution and laws of the state and do not derive any power from the laws of the United States, and congress cannot confer jurisdiction upon a state court or any other court which it has not ordained and established.'

"See 14 Am. Jr. Sec. 162, Courts, p. 365.

"In this connection it is to be noted that when the concurrent jurisdiction provided for in the Federal Employers Liability Act was questioned in one of the earlier cases, Mondon v. N.Y. H.R.R.R. Co., 223 U.S. 1, 56 L.Ed. 327, the court said:

"``There is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure * * *.'

"It is apparent from the above authorities, and there are several other cases to the same effect, that the Congress does not control either the power or the jurisdiction of the state courts. ``Jurisdiction' in the state of Washington means the power to hear and determine regardless of whether the ruling made in the particular case be correct or incorrect. State Ex Rel.McGlothern v. Superior Court, 112 Wn. 501, 192 P. 937. It is likewise apparent that there is a distinction between ``jurisdiction' and ``power.' Given jurisdiction, given the right to hear and determine, a court is not to be directed by a legislature concerning the method of decision; the law is to be applied to the facts established and all relevant facts are to be considered.

"The situation here is that the state court is given a right to hear, not all the facts, but only some of them. Should the defendant challenge the regulation and offer proof otherwise relevant, that proof cannot be admitted. That must certainly amount to a limitation of power and the rule must be that only the source of power can limit it.

"It is to be admitted that there are many cases to be cited where the court follows the limitation in the Federal statute. The great majority, practically all of them, are holdings of the inferior Federal courts. These courts are creatures of Congress with no limit on the right of their creator to limit either their jurisdiction or power; it established and it may abolish them. They must decide as Congress wills as they have no constitutional source of power. This clearly appears from the March 27th, 1944, opinion in Yakus v. The U.S., 88 L.Ed. Adv. Opinions, p. 653, where it is said in considering this proposition:

"``This was accomplished by the exercise of the constitutional power of congress to prescribe the jurisdiction of inferior Federal courts, and the jurisdiction of all state courts to determine federal questions, and to vest that jurisdiction in a single court, the emergency court of appeals.'

"This is likewise the effect of the holding in Bowles v.Willingham, vol. 88 L.Ed. Adv. Opinions, page 627, decided the same day as the Yakus case above.

"In the Yakus case a defendant charged by indictment with violation of a regulation was denied the right to prove that the regulation did not conform to the standards of the act and that it violated the fifth amendment.

"Quoting from the opinion:

"``And we are pointed to no principle of law or provision of the constitution which precludes congress from making criminal the violation of an administrative regulation by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of all administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. Such a requirement presents no novel constitutional issue.'

"From the point of view of a defendant, the above is a statement that the trial for the crime is either in two parts in two courts or on only a portion of the issues material to guilt in one court. It might even be said that the idea of ``committing the determination of the issue of its validity to the agency which created it' is, if not ``novel,' at least astonishing.

"True, the instant case is a civil action. It is still a fact, however, that relevant evidence, even in civil cases, is barred by this statute and this is more than control or definition of jurisdiction. It is rather an abridgment of judicial power. It amounts to an order by the legislative branch directing a court to enforce what may be a void statute or regulation and this must be an invasion of the judicial function. Where it appears, as it certainly does in this state, that the courts of Washington are exerting a power from the state's Constitution beyond any right of the legislature to control, it would seem that it is beyond the power of Congress to direct that the state court assume jurisdiction with limited power.

"In the briefs and arguments the claim is made that this is an attempt to use the courts of the state to enforce a penal statute of the United States, and attention is directed to the rule that a penal statute of one jurisdiction will not be enforced in another. The distinction seems to be that a remedial action is one given to the injured party with recovery limited to compensation, while an action in which recovery is permitted for an amount in excess of compensation or indemnity is penal for the reason that the recovery is designed to punish the defendant.

"Our court, in Bailey v. Hayden, 65 Wn. 57, 117 P. 720, in construing our statute, Rem. Rev. Stat. Sec. 937, which provides that anyone cutting timber on the land of another without authority is liable to the owner in treble damages, said:

"``It is obvious that the increased measure is allowed, not as compensation to the person wronged, but as punishment to the wrongdoer. It is not a mere question of terms, but of the inherent quality of the thing. The increased measure is punitive in its very nature, in that it exceeds the true measure of compensation.'

"It requires no imagination whatever to determine that a statute which provides that

"``* * * the person * * * may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney's fees and costs as determined by the court.'

is punitive in its nature and is designed to punish rather than compensate. At least it is a compulsory payment of an arbitrary sum intended to punish as a deterrent. It may well be penal as far as the defendants are concerned, although it may be remedial as far as the administrator is concerned. For an exhaustive discussion of penal vs. punitive statutes see Huntington vs.Attrill, 146 U.S. 657, 36 L.Ed. 1123.

"However, this question here is on demurrer and perhaps the plaintiff may recover his actual loss, if any, although he demands the added penalty. It is not the policy of this state to force a plaintiff out of one door of the courtroom that he may enter another.

"The major problem here is whether our court shall accept jurisdiction when it is offered by Congress with a limitation on power. Is the general power of this court to be limited once it has taken over the case? There is the basic principle that the judicial branch of government is not to be worn down by the coordinate branches and the rights and duties entrusted by the people through their Constitution to each branch are to be preserved.

"It seems most apparent that the judicial power of the state court is not to be limited by this Federal statute; that the court is entitled or even required to hear all relevant evidence once the inquiry is begun and that in any situation where this is not the fact there is no jurisdiction."

We should follow the rule to which I have just referred. The rule was recently upheld by the supreme court of Rhode Island in the case of Robinson v. Norato, 43 A.2d (R.I.) 467. That action was brought by a tenant against his landlord for overcharges of rent in violation of the Federal emergency price control act, and of regulations made by the department. The court, in speaking of the portion of the OPA act known as § 205 (e), set out in the majority opinion, stated:

"Is this statute, under the established law of Rhode Island, a penal statute in an international sense? On the authority of the cases here we think that it must be so considered. McLay v.Slade, 48 R.I. 357, 138 A. 212; O'Reilly v. New York N.E.R.Co., 16 R.I. 388, 17 A. 171, 906, 19 A. 244, 5 L.R.A. 364, 6 L.R.A. 719. That the penal statutes of one state will not be enforced by the courts of another state is a rule of private international law, which is universally acknowledged and applied. The Antelope, 10 Wheat. 66, 123, 6 L.Ed. 268; State of Wisconsinv. Pelican Ins. Co., 127 U.S. 265, 8 S.Ct. 1370, 32 L.Ed. 239. But there has long been an apparently irreconcilable divergence of view as to what is a penal statute in an international sense. The settled view of the Supreme Court of the United States appears to be that a statute is penal, in that sense only if ``its purpose is to punish an offense against the public justice of the state' rather than ``to afford a private remedy to a person injured by the wrongful act.' Huntington v. Attrill,146 U.S. 657, 673, 13 S.Ct. 224, 230, 36 L.Ed. 1123.

"Since that decision was handed down in 1892 many state courts have followed it and some, in order to do so, have overruled their own prior decisions, which had enunciated a different rule.Wellman v. Mead, 93 Vt. 322, 107 A. 396; Daury v. Ferraro,108 Conn. 386, 143 A. 630, 62 A.L.R. 1323. But in the McLay case, supra, this court, although it was also urged to overrule its prior decision in the O'Reilly case, expressly declined to do so. In that case this court had held that, where a Massachusetts statute had for its object some punishment of the defendant, it was a penal statute, notwithstanding the fact that the penalty of not less than $500 to be recovered by a civil action inured to the benefit of certain persons designated by the statute and not to the state of Massachusetts. Such was the so-called broad view of a penal statute that was somewhat widely held in this country until the opinion in Huntington v. Attrill, supra, gave strong support to what is sometimes called the narrow view. The latter view has been briefly and well expressed by the New York Court of Appeals, speaking through Judge Cardozo, in Loucks v. Standard Oil Co.,224 N.Y. 99, 102, 120 N.E. 198, wherein a penal statute in the international sense is defined as ``one that awards a penalty to the state, or to a public officer in its behalf, or to a member of the public, suing in the interest of the whole community to redress a public wrong. * * * The purpose must be, not reparation to one aggrieved, but vindication of the public justice.'

"On that view it may be that section 205 (e) is not a penal statute, but, in our opinion, there is no question that under the rule of the O'Reilly case it is such a statute. In that case this court held to be penal a Massachusetts statute which was less punitive than section 205 (e). The feature of a statute which distinguishes it as penal, in the view of this court, is the imposition of some punishment upon the defendant for the violation of the law, regardless of whether the penalty is recoverable by a private person or not. This distinction was pointed out in Gardner v. New York N.E.R. Co., 17 R.I. 790,24 A. 831, 832.

"There a Connecticut statute that somewhat resembled the Massachusetts statute, which was involved in the O'Reilly case, in that it provided a remedy for damages to the person injured by its violation, was held to be not penal but remedial, because it provided for no recovery, by either the state or the injured person, of a penalty as punishment to the defendant for violating the statute. The court expressly stated that: ``A penal statute is one by which some punishment is imposed for a violation of the law.' And it pointed out that since, unlike the Massachusetts statute, none was provided for in the Connecticut statute, it was not penal but entirely remedial. The federal statute here not only provides for the recovery of a penalty by the person injured but also for the recovery of an identical penalty by the United States whenever the injured person is not entitled to bring suit himself. The case at bar is an action, under the statute, to recover the arbitrary sum of $50 for each violation of such statute, regardless of the actual damage suffered by the plaintiff. It, therefore, clearly comes within the rule of theO'Reilly case and is not cognizable in the courts of this state.

"Plaintiff practically concedes that this conclusion is correct if the rule of the O'Reilly case is adhered to, but he argues that it should no longer be followed, first, because the rule ofHuntington v. Attrill, supra, was substantially approved inKilton, Warren Co. v. Providence Tool Co., 22 R.I. 605,48 A. 1039; second, because in the McLay case this court leaned heavily on certain Massachusetts cases and that state has since adopted the rule of the Huntington case, thereby weakening theMcLay case as authority; and, third, that in any event we should overrule that case and the O'Reilly case.

"The answer to the first contention is that it is without foundation. A careful reading of the opinion in the Kilton,Warren Co. case will show that this court was not considering whether the statute there involved was penal in an international sense. The question for decision was solely whether the statute was strictly penal so as to fall under the provisions of a special statute of limitations. In its discussion of the problem before it, the court was careful to say, 22 R.I. at page 613, 48 A. at page 1041, of the opinion: ``That the effect of this statute is to impose a penalty upon the stockholder for the default of the corporation may be admitted.' And then after quoting from theHuntington case as to the characteristics of a strictly penal statute, the court took the pains to state expressly: ``It need hardly be said that this construction of chapter 288 is not a decision that the provisions of chapter 555, Pub. Laws 1876, imposing special liabilities upon stockholders and officers of manufacturing corporations, in cases of nonperformance of statutory duties, are not of a penal character.' In other words, while the court held that the statute was not a strictly penal statute within the contemplation of the special statute of limitations, it was nevertheless a penal statute for other purposes.

"The second contention is equally without merit. The context of the opinion in the McLay case shows that this court recognized and applied the well-established rule that the test of whether a statute is penal in an international sense is not what the Legislature or the court of its home state says it is but what the court where it is sought to be enforced says it is. In its discussion of the Massachusetts cases this court, in the McLay case, did not say that those cases were controlling on the question whether the Massachusetts statute was to be deemed penal in its nature in Rhode Island."

I call especial notice to the conclusion made by the Rhode Island court:

"The supremacy clause of the federal Constitution cannot, in our opinion, be legitimately construed to compel state courts to take jurisdiction and enforce such penal statutes. On that score such statutes of the several states and the United States stand upon an equal footing. They are to be enforced or not enforced according to the rule of comity in private international law and not by reason of any constitutional mandate. Except as to the full faith and credit clause, the Constitution is silent on this subject. Each state is free to decide what statutes of another jurisdiction are penal and, therefore, unenforceable in its courts, provided, however, that as to the states of the Union and the United States, it may not discriminate in favor of state laws and against the laws of the United States.

"To summarize our position, we hold that, in the consideration of a statute like the one before us, this court has the right and authority to determine its character before allowing it to be enforced in the courts of this state; that if we find it to be penal we may refuse to enforce it regardless of its federal origin; and that the federal Constitution does not require us to treat the United States in a matter of this nature more favorably than we do a sister state of the Union. The contrary view would make the state courts, nolens volens, in effect, inferior federal courts to enforce all federal statutes, whenever Congress so declares."

In order to make plain my contention that plaintiff is entitled to prevail upon the merits shown by the evidence, I deem it necessary to recite facts in addition to those mentioned in the majority opinion. In considering this point, I admit for the purpose of argument that the OPA act is constitutional and that the courts of this state have jurisdiction of cases of this nature.

Appellant, Bartley B. Gilman, was a city light electrician, and with his wife had lived in Seattle for forty-five years. Appellants rented a room April 1, 1941, for forty-five dollars per month. At that time, the room contained a bed and a kitchen table. There were no housekeeping facilities, because the occupants only wanted a place to sleep. In January, 1942, the property was improved in the following manner: The closet was enlarged and in it was installed a double bed; a frame partition was put in and French doors hung, which made an extra room, and drapes and shades were installed; the premises were air-conditioned, and an electric hot water tank and electric washing service were installed; hardwood floors were laid; appellants furnished the rooms with walnut furniture, rugs, and beds, a library table, occasional chairs, a dining set complete, kitchen complete — linen and dishes and cooking utensils, silverware, Frigidaire, electric range; chiffonier and dresser set complete; bedding and pillows were also furnished. Everything was arranged for housekeeping. All that the renters had to do was to buy their provisions.

In addition, a new private entrance was made for respondents. The total cost of all the improvements was $1,585.

Immediately after the change, appellants charged a rental of seventy-five dollars a month for the apartment as furnished.

May 29, 1942, the Federal OPA office issued a decree entitled "HOW TO DETERMINE YOUR MAXIMUM RENT." The pertinent portion of that document reads as follows:

"The maximum rent for a housing accommodation actually rented on April 1, 1941, is the rent for such accommodation on that date, excepting when the following substantial changes occurred between April 1, 1941 and June 1, 1942:

"(1) When the number of separate dwelling units in a housing accommodation was increased or decreased between those dates, the maximum rent for each separate unit is the first rent charged after such change.

"(2) When the housing accommodation was changed from unfurnished to fully furnished or from fully furnished to unfurnished between those dates, the maximum rent is the first rent charged after such change.

"(3) When the housing accommodation was substantially changed between those dates by a major capital improvement as distinguished from ordinary repair, replacement and maintenance, the maximum rent is the first rent charged after such capital improvement. A major capital improvement refers only to a real change in the character of the housing accommodations, such as additional rooms, a new porch, a new garage, a new bath or toilet. Maintenance, repairs, replacements or minor changes are not major capital improvements, even though they involve large expenditures, such as the cost of a new roof. . . .

"Whenever the maximum rent is fixed other than by the rent actually charged on April 1, 1941, the area rent director may order a decrease in the maximum rent, after giving notice to the landlord. There are also a few exceptional cases in which the landlord may petition for an increase in the maximum rent. However, such an increase can not be effective until such time as the landlord's petition has been granted by the director. It, therefore, cannot affect the rent payable June 1, 1942."

Shortly before July 16, 1942, appellants filed on blanks for that purpose, a registration of their premises. That registration showed the former rental of forty-five dollars. The rents charged, as seventy-five dollars per month, and the maximum legal rent which could be charged, of ninety dollars per month. The registration contained the statement:

"This was converted from a single unit to a double unit consisting of two bedrooms, all linen, dishes, cooking utensels, Bedding, telephone service. — Rented at Present to two Families of two each."

On the registration blank were two stamps placed there by the OPA. One stated: "VOID Must Be Registered again Return this form with your new registration."

The other read: "Maximum Rent Changed by Order of Rent Director Dated June 15, 1943 to $45.00 per mo. effective June 1, 1942."

After filing their registration, appellants did not hear concerning it until it was returned by mail June 15, 1943, at which time they were told that they could only charge a rental of forty-five dollars per month. It was the duty of the OPA to serve a notice upon appellants when they proposed to change the rent from seventy-five dollars a month to forty-five dollars a month. This is demonstrated by the following excerpt from Bowles v. Willingham, 321 U.S. 503, 88 L.Ed. 892,64 S.Ct. 641:

"By Procedural Regulation No. 3, as amended (8 Fed. Reg. 526, 1798, 3534, 5481, 14811) issued pursuant to § 201 (d) and § 203 (a) of the Act provision was made that when the Rent Director proposed to take such action he should serve a notice upon the landlord involved, stating the proposed action and the grounds therefor."

In that case, the rent dictator gave written notice to Mrs. Willingham that he proposed to decrease rents on apartments which she owned. That requirement was not complied with in this case. Dictatorial government agencies should at least follow their own rules.

In the instant case, appellants converted a bare flat, giving meagre accommodations to one or two people, into a modern, completely equipped, apartment, for the use of four people, in order to assist the war effort by supplying additional living quarters. All they have received in return is a judgment which takes away their hard-earned savings. Their improvements were major improvements which called for more rent. In any event, the recovery should be denied for the reason that the notice of reduction had not been served upon appellants.

The unconscionable acts of the OPA in this case are in keeping with other acts of that arbitrary, dictatorial, and un-American bureau, which, holding forth the bugaboo of inflation, has brought financial ruin to tens of thousands of Americans. As Senator Byrd has said, "It is a new idea, strange to the American way of life and foreign to its origins." Its rent controls have advanced to a point of confiscation and control of property without trial or due process of law. Under the OPA system, a businessman in certain lines has three choices: (1) lose money; (2) violate orders; or (3) go out of business.

As an example: For some reason, OPA fixed the ceiling price of two dollars fifty cents per hundredweight for Louisiana potatoes; at the same time, the Texas price was fixed at three dollars seventy-five cents per hundredweight. Louisiana potatoes trucked across the state line brought fifty per cent more than when sold in the accustomed local market. In speaking of this situation, Representative James H. Morrison of Louisiana stated:

"The fault lies solely with OPA. I read in the papers that New York City is without potatoes. Washington is short of potatoes, and yet there are tons and tons of potatoes right there in the ground in Louisiana that may never be dug. Why? Because they have the ridiculous ceiling price of $2.50. Either there is an ulterior motive behind this whole thing or it is based upon gross incompetence."

The OPA caused a loss of one billion dollars in postponing the settlement of the recent steel strike. Employees were entitled to a raise in wages. Employers were willing to grant the increase, but could not do it until the price of their products was raised to a point where they would not have to do business at a loss. OPA delayed to grant the increase until one billion dollars had been lost to the American people, and reconversion unduly delayed. Dairy herds by the thousands have been destroyed by the arbitrary actions of OPA. After an inquiry extending over some ten months, a committee reported to its house of representatives in November, 1943, that it had found in OPA an ominous picture of the early preliminary steps to a dictatorship. This committee also stated:

"Your committee has found, not only that the Office of Price Administration has developed an unauthorized and illegal judicial system but that through the mass of rules and regulations daily enacted has also developed such intricate and involved administrative review machinery that litigants are completely bewildered. . . . This situation must be changed, and changed immediately, if our form of government is to endure."

In an earlier report on rent controls, this committee had said (Report No. 699, 78th, 1st, July 27, 1943):

"By means of its regulations regarding evictions, the Rent Department of OPA has set aside and over-ridden State and local laws in all except three defense-rental areas, and has attempted to ``educate' the courts to do likewise, thereby acting beyond the scope of its authority and invading the constitutional rights of citizens. . . . OPA grants permission to public housing to increase its rentals to the comparable market levels, but denies to private housing this right, even though the rentals in the private housing were kept below the market level as a result of Federal Housing regulations."

It seems strange that OPA can survive. That it does live is due in a large part to its propaganda department manned by hundreds of skilled and well-paid servants who have overcome the spirit of liberty which actuated our forefathers in dumping British tea into Boston Harbor.

OPA is an outlaw. It sears, burns, and destroys all it touches. It is a tyrant and knows no law, save its own caprice.

The problem confronting us is greater than the decision in this case — it involves the existence of a free country. Now America is traveling the road to serfdom, guided and commanded by thousands of boards, bureaus, offices, and commissions. In the forefront, carrying the flag of tyranny, marches the OPA.

In an article entitled "It Can Happen Here" in 1937, George Sokolsky wrote to explain the Russian revolution.

"What were intelligent, educated people doing [before that]?" he asked. "They were having a swell time. Every night the cafes were filled. The artists sang humorous songs about Lenin and Trotsky and the business men applauded with merriment . . . the majority was destroyed because it could not believe that it had to organize and fight to live."

The decision in this case should be that the act is unconstitutional, or in any event, that courts of this state do not have jurisdiction to settle the controversy between these individuals. If we cannot so decide, we should hold that appellants are entitled to prevail on the merits.

MILLARD, J., concurs with SIMPSON, J.